ORDINARY MEETING OF COUNCIL - The Hills Shire...Local Government Act, 1993 and the Local Government...

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ORDINARY MEETINGOF COUNCIL

Tuesday, 08 September 2020

ORDINARY MEETING OF COUNCIL 08 SEPTEMBER, 2020

ITEM SUBJECT PAGE ITEM-1 CONFIRMATION OF MINUTES

ITEM-2 ELECTION OF DEPUTY MAYOR 16

THE FOLLOWING ITEM 3 IS DEFINED AS A PLANNING MATTER PURSUANT TO THE LOCAL GOVERNMENT & PLANNING LEGISLATION AMENDMENT (POLITICAL DONATIONS) ACT 2008

ITEM-3 PLANNING PROPOSAL - BULL AND BUSH HOTEL - VOLUNTARY PLANNING AGREEMENT (19/2016/PLP)

18

ITEM-4 WAVES FITNESS & AQUATIC CENTRE MANAGEMENT MODEL OPTIONS

65

ITEM-5 ADMINISTRATION OF THE PERFORMANCE REVIEW OF THE GENERAL MANAGER

79

ITEM-6 MINUTES OF AUDIT COMMITTEE MEETING - 18 AUGUST 2020

92

ITEM-7 LICENCE AGREEMENT WITH THE CHILDRENS PRESCHOOL PTY LTD

244

ITEM-8 PROPERTY DEALINGS RELATING TO DEVELOPMENT MATTERS

246

ITEM-9 THE WATER LANE RESERVE - POST EXHIBITION REPORT

251

ITEM-10 TENDER T20/51 - PROVISION OF CLEANING SERVICES TO VARIOUS COUNCIL BUILDINGS

259

ITEM-11 PROPOSED LAND ACQUISITION - LOT 4, PART OF 8-10 BARRY ROAD, NORTH KELLYVILLE

263

MINUTES of the duly convened Ordinary Meeting of The Hills Shire Council held in the Council Chambers on 25 August 2020

This is Page 1 of the Minutes of the Ordinary Meeting of The Hills Shire Council held on 25 August 2020

ITEM SUBJECT PAGE ITEM-1 CONFIRMATION OF MINUTES 3

MAYORAL MINUTE NO. 08/2020 - JERSEY DAY 2020 3

MAYORAL MINUTE NO. 09/2020 - RURAL AID TELETHON 4

ITEM-2 POST EXHIBITION - PLANNING PROPOSAL - MUSEUM DISCOVERY CENTRE - 2 GREEN ROAD, CASTLE HILL (5/2020/PLP)

6

ITEM-3 POST EXHIBITION - PLANNING PROPOSAL FOR DRAFT THE HILLS LOCAL ENVIRONMENTAL PLAN 2020 (3/2020/PLP)

5

ITEM-4 PROPOSED HOUSING DIVERSITY STATE ENVIRONMENTAL PLANNING POLICY (FP58)

7

ITEM-5 POST EXHIBITION REPORT - DRAFT LANDSCAPE MASTER PLAN - CASTLE HILL SHOWGROUND

9

ITEM-6 CADDIES BOULEVARD, ROUSE HILL - EXTENSION OF TIME FOR TEMPORARY 'WORKS ZONE'

8

ITEM-7 2019/2020 UNAUDITED STATUTORY FINANCIAL STATEMENTS & BUDGET RESULT

5

ITEM-8 BUDGET REVIEW AS AT 31 JULY 2020 8

ITEM-9 TENDER 20/28 IN-HOME RESPITE SERVICES HILLS COMMUNITY CARE (HCC)

8

ITEM-10 TENDER 20/48 - ROUNDABOUT AT THE INTERSECTION OF BOUNDARY ROAD AND NEICH/PITT TOWN ROAD MARAYLYA

9

ITEM-11 TENDER 20/49 - CRESTWOOD RESERVE - TOONGABBIE CREEK CIVIL WORKS

10

ITEM-12 TENDER T20/50 - HEZLETT ROAD UPGRADE-BETWEEN SAMANTHA RILEY DRIVE AND ARMBRUSTER AVENUE NORTH KELLYVILLE

10

ITEM-13 PROPOSED LAND ACQUISITION OF LOT 22 DP 1235130 & LOT 32 DP 1235129 MASON ROAD, BOX HILL

9

ITEM-14 INFORMATION AND STATUS REPORTS 10

QUESTIONS WITHOUT NOTICE 11



456 PRESENT

Mayor Dr M R Byrne (In the Chair) Clr R Jethi (Deputy Mayor) Clr R A Preston MP Clr Dr P J Gangemi Clr A N Haselden Clr J Jackson Clr M G Thomas Clr E M Russo Clr F P De Masi Clr A J Hay OAM Clr S P Uno

457 APOLOGIES

Clr B L Collins OAM Clr R M Tracey

458 TIME OF COMMENCEMENT

7.09pm

459 TIME OF COMPLETION

10.49pm

460 DECLARATIONS OF INTEREST

Item 3 Councillor Preston MP Item 4 Councillor Preston MP

461 ARRIVALS AND DEPARTURES

7.58pm Councillor Preston MP having previously declared a non-pecuniary, less significant conflict of interest left the meeting for Item 3 and returned at 8.58pm at the start of Item 2.

9.28pm Councillor Preston MP having previously declared a non-pecuniary, less significant conflict of interest left the meeting for Item 4 and returned at 9.48pm during Call of the Agenda.

9.38pm Councillor Jethi left the meeting and returned at 9.42pm during Item 4 9.49pm Councillor Dr Gangemi left the meeting and returned at 9.51pm during Item 5. 10.12pm Councillor De Masi left the meeting and returned at 10.15pm during Item 11. 10.23pm Councillor Russo left the meeting and returned at 10.27pm during Item 12.

462 DISSENT FROM COUNCIL'S DECISIONS

Nil.

463 ADJOURNMENT & RESUMPTION

Nil.



The Mayor advised in accordance with the Code of Meeting Practice that this meeting is being recorded.

ITEM-1 CONFIRMATION OF MINUTES A MOTION WAS MOVED BY COUNCILLOR JETHI AND SECONDED BY COUNCILLOR RUSSO THAT the Minutes of the Ordinary Meeting of Council held on 11 August 2020 be confirmed. THE MOTION WAS PUT AND CARRIED.

464 RESOLUTION

The Minutes of the Ordinary Meeting of Council held on 11 August 2020 be confirmed. APOLOGIES A MOTION WAS MOVED BY COUNCILLOR HAY OAM AND SECONDED BY COUNCILLOR PRESTON MP THAT the apologies from Councillors COLLINS OAM and TRACEY be accepted and leave of absence granted. THE MOTION WAS PUT AND CARRIED.

465 RESOLUTION

The apologies from Councillors COLLINS OAM and TRACEY be accepted and leave of absence granted. MAYORAL MINUTE NO 8/2020 - JERSEY DAY 2020 A MOTION WAS MOVED BY THE MAYOR AND SECONDED BY COUNCILLOR DE MASI THAT

1. This Mayoral Minute be received.

2. A minute’s silence be observed.

THE MOTION WAS PUT AND CARRIED.

466 RESOLUTION

1. This Mayoral Minute be received.

2. A minute’s silence be observed.

(A minute’s silence was observed).



SUSPENSION OF STANDING ORDERS A MOTION WAS MOVED BY COUNCILLOR HAY OAM AND SECONDED BY COUNCILLOR RUSSO THAT standing orders be suspended to allow the Councillors to take a group photograph for Jersey Day. THE MOTION WAS PUT AND CARRIED.

467 RESOLUTION

Standing orders be suspended to allow the Councillors to take a group photograph for Jersey Day. At 7.15pm standing orders were suspended. RESUMPTION OF STANDING ORDERS A MOTION WAS MOVED BY COUNCILLOR HAY OAM AND SECONDED BY COUNCILLOR RUSSO THAT standing orders be resumed. THE MOTION WAS PUT AND CARRIED.

468 RESOLUTION

Standing orders be resumed. At 7.21pm standing orders were resumed.

MAYORAL MINUTE NO. 9/2020 - RURAL AID TELETHON A MOTION WAS MOVED BY THE MAYOR AND SECONDED BY COUNCILLOR JETHI THAT The regular fees and charges associated with hiring Bella Vista Farm be waived for the Nine Network Rural Aid Telethon. THE MOTION WAS PUT AND CARRIED.

469 RESOLUTION

The regular fees and charges associated with hiring Bella Vista Farm be waived for the Nine Network Rural Aid Telethon.

COMMUNITY FORUM

There were no addresses to Council during Community Forum.



ITEM -7 2019/2020 UNAUDITED STATUTORY FINANCIAL STATEMENTS & BUDGET RESULT

Proceeding in Brief

Brett Hanger - Nexia Auditors addressed Council regarding this matter. A MOTION WAS MOVED BY COUNCILLOR HAY OAM AND SECONDED BY COUNCILLOR DE MASI THAT the Recommendation contained in the report be adopted. THE MOTION WAS PUT AND CARRIED.

470 RESOLUTION

1. The presentation from Audit Office be received.

2. The Statutory Financial Statements (Attachment 1) as required by Section 413 of the Local Government Act, 1993 and the Local Government Code of Accounting Practice be adopted and signed by the Mayor, Deputy Mayor, General Manager and the Responsible Accounting Officer.

3. Upon Council receiving the Auditor’s written Report:-

(a) The Financial Statements (Attachment 1) be advertised and forwarded to the NSW Office of Local Government;

(b) following advertising, be presented to the next available Meeting of Council. 4. The Capital Improvement Budget Variations, Carryover Funds and Proposed Transfers

to Reserves as detailed in Attachment 4 Pages 1 to 25 be adopted. 7.58pm Councillor Preston MP having previously declared a non-pecuniary, less

significant conflict of interest left the meeting for Item 3 and returned at 8.58pm at the start of Item 2.

ITEM-3 POST EXHIBITION – PLANNING PROPOSAL FOR DRAFT THE HILLS LOCAL ENVIRONMENTAL PLAN 2020 (3/2020/PLP)C INFO

Proceedings in Brief Darryl Jennings of Rouse Hill (Objector) addressed Council through the General Manager regarding this matter. James Proctor of Baulkham Hills (Objector) addressed Council through the General Manager regarding this matter. Stephen McIntyre, Chief Executive Officer of behalf of Wentworth Community Housing (Objector) addressed Council through the General Manager regarding this matter Angus Gordon of behalf of (GPT) (Objector) addressed Council through the General Manager regarding this matter.



A MOTION WAS MOVED BY COUNCILLOR DR GANGEMI AND SECONDED BY COUNCILLOR HASELDEN THAT the Recommendation contained in the report be adopted. THE MOTION WAS PUT AND CARRIED UNANIMOUSLY.

471 RESOLUTION

The planning proposal for Draft The Hills Local Environmental Plan 2020, consistent with Attachments 6-8, be forwarded to the Department of Planning, Industry and Environment for finalisation. Being a planning matter, the Mayor called for a division to record the votes on this matter VOTING FOR THE MOTION Mayor Dr M R Byrne Clr R Jethi Clr Dr P J Gangemi Clr A N Haselden Clr J Jackson Clr M G Thomas Clr E M Russo Clr F P De Masi Clr A J Hay OAM Clr S P Uno VOTING AGAINST THE MOTION None ABSENT Clr B L Collins OAM Clr R M Tracey ABSENT FROM THE ROOM Clr R A Preston MP ITEM-2 POST EXHIBITION - PLANNING PROPOSAL - MUSEUM

DISCOVERY CENTRE - 2 GREEN ROAD, CASTLE HILL (5/2020/PLP)

A MOTION WAS MOVED BY COUNCILLOR DE MASI AND SECONDED BY COUNCILLOR RUSSO THAT the Recommendation contained in the report be adopted. THE MOTION WAS PUT AND CARRIED UNANIMOUSLY

472 RESOLUTION

The planning proposal to amend The Hills Local Environmental Plan 2019 as it related to land at 2 Green Road, Castle Hill, proceed to finalisation.



Being a planning matter, the Mayor called for a division to record the votes on this matter VOTING FOR THE MOTION Mayor Dr M R Byrne Clr R Jethi Clr R A Preston MP Clr Dr P J Gangemi Clr A N Haselden Clr J Jackson Clr M G Thomas Clr E M Russo Clr F P De Masi Clr A J Hay OAM Clr S P Uno VOTING AGAINST THE MOTION None ABSENT Clr B L Collins OAM Clr R M Tracey 9.28pm Councillor Preston MP having previously declared a non-pecuniary, less

significant conflict of interest left the meeting for Item 4 and returned at 9.48pm during Call of the Agenda.

9.38pm Councillor Jethi left the meeting and returned at 9.42pm during Item 4 ITEM-4 PROPOSED HOUSING DIVERSITY STATE

ENVIRONMENTAL PLANNING POLICY (FP58)

A MOTION WAS MOVED BY COUNCILLOR DR GANGEMI AND SECONDED BY COUNCILLOR UNO THAT the Recommendation contained in the report be adopted. THE MOTION WAS PUT AND CARRIED UNANIMOUSLY.

473 RESOLUTION

1. The report be received.

2. Council make a submission to the Department of Planning, Industry and Environment in response to the exhibition of the Explanation of Intended Effect for the proposed Housing Diversity SEPP, provided as Attachment 2.

Being a planning matter, the Mayor called for a division to record the votes on this matter VOTING FOR THE MOTION Mayor Dr M R Byrne Clr R Jethi Clr Dr P J Gangemi Clr A N Haselden Clr J Jackson Clr M G Thomas



Clr E M Russo Clr F P De Masi Clr A J Hay OAM Clr S P Uno VOTING AGAINST THE MOTION None ABSENT Clr B L Collins OAM Clr R M Tracey ABSENT FROM THE ROOM Clr R A Preston MP

CALL OF THE AGENDA A MOTION WAS MOVED BY COUNCILLOR DE MASI AND SECONDED BY COUNCILLOR RUSSO THAT items 6, 8, 9 and 13 be moved by exception and the recommendations contained therein be adopted. THE MOTION WAS PUT AND CARRIED.

474 RESOLUTION

Items 6, 8, 9 and 13 be moved by exception and the recommendations contained therein be adopted. ITEM-6 CADDIES BOULEVARD, ROUSE HILL - EXTENSION OF

TIME FOR TEMPORARY ‘WORKS ZONE’

475 RESOLUTION

1. Council approve an eight month extension to the existing 25 metre long ‘Works Zone 7am – 5pm Monday – Saturday, No Stopping at Other Times’ restrictions at 104 - 106 Caddies Boulevard, Rouse Hill as detailed in Figure 1 in the report.

2. Council’s approval be subject to the applicant obtaining a Road Occupancy Licence for the Works Zone from the NSW Transport Management Centre.

3. The General Manager be given delegated authority to approve any future request for an extension to the ‘Works Zone’ at 104-106 Caddies Boulevard up to a maximum of two months beyond the four month extension of time.

ITEM-8 BUDGET REVIEW AS AT 31 JULY 2020

476 RESOLUTION

The proposed budget variations in Attachment 1, Pages 5 to 11 and the variations detailed in page 12-30 be adopted.



ITEM-9 TENDER 20/28 IN-HOME RESPITE SERVICES HILLS

COMMUNITY CARE (HCC)

477 RESOLUTION

1. The General Manager be authorised to enter into contracts with a panel of 2 Respite Care Agencies and awards contracts for 2 + 2 years to NSW Business Chamber trading as Heartbeat Nursing Agency Pty Ltd and Wendys Home Care Services Pty Ltd inclusive of prices tendered as listed in the Confidential Memo to Councillors.

2. The General Manager be authorised to exercise the 2 year option for each individual contractor subject to all performance criteria being met by the contractor and subject to ongoing grant funding being available to THSC – HCC from the Commonwealth Home Support Program.

ITEM-13 PROPOSED LAND ACQUISITION – LOT 22 DP 1235130 & LOT 32 DP 1235129 MASON ROAD, BOX HILL

478 RESOLUTION

1. Council agree to the purchase of Lot 22 DP 1235130 & Lot 32 DP 1235129 Mason Road, Box Hill for the market value amount of $350,600 excl. GST and disturbance costs as outlined in this report with a Contract of Sale and any required Deeds, plans, instruments, transfers and any other associated documents required, be authorised for execution under seal.

2. Upon acquisition, Council classify Lot 22 DP 1235130 and Lot 32 DP 1235129 as “Operational” Land pursuant to Section 25 of the Local Government Act 1993.

9.49pm Councillor Dr Gangemi left the meeting and returned at 9.51pm during Item 5. ITEM-5 POST EXHIBITION REPORT – DRAFT CONCEPT

MASTER PLAN – CASTLE HILL SHOWGROUND

A MOTION WAS MOVED BY COUNCILLOR HASELDEN AND SECONDED BY COUNCILLOR UNO THAT the Recommendation contained in the report be adopted. THE MOTION WAS PUT AND CARRIED.

479 RESOLUTION

1. Council adopt the Draft Concept Master Plan for the Castle Hill Showground.

2. A further report be submitted for Council’s consideration on the alternate management options for the delivery of the Master Plan.

3. Council continue to consult with user groups and the community as part of the further

design stages of the project.



ITEM-10 TENDER T20/48 - CONSTRUCTION OF A ROUNDABOUT AT THE INTERSECTION OF BOUNDARY ROAD AND NEICH/PITT TOWN ROAD, MARAYLYA

A MOTION WAS MOVED BY COUNCILLOR DR GANGEMI AND SECONDED BY COUNCILLOR PRESTON THAT the Recommendation contained in the report be adopted. THE MOTION WAS PUT AND CARRIED.

480 RESOLUTION

1. Council approve additional funds of $144,408 from Capital Works Reserve. 2. Council accept the tender offer of the Preferred Tenderer for Tender T20-48 for the

construction of a roundabout at the intersection of Boundary Road, Neich Road and Old Pitt Town Road, Maraylya for the contract sum of $394,249.90.

10.12pm Councillor De Masi left the meeting and returned at 10.15pm during Item 11. ITEM-11 TENDER T20/49 CRESTWOOD RESERVE BAULKHAM

HILLS –TOONGABBIE CREEK CIVIL WORKS

A MOTION WAS MOVED BY COUNCILLOR THOMAS AND SECONDED BY COUNCILLOR JACKSON THAT the Recommendation contained in the report be adopted. THE MOTION WAS PUT AND CARRIED.

481 RESOLUTION

Council accept the tender offer of the Preferrered Tenderer for Tender T20-49 Crestwood Reserve - Toongabbie Creek Civil Works for the contract sum of $974,738. 10.23pm Councillor Russo left the meeting and returned at 10.27pm during Item 12. ITEM-12 TENDER T20/50 HEZLETT ROAD UPGRADE-BETWEEN

SAMANTHA RILEY DRIVE AND ARMBRUSTER AVENUE NORTH KELLYVILLE

A MOTION WAS MOVED BY COUNCILLOR DR GANGEMI AND SECONDED BY COUNCILLOR HAY OAM THAT the Recommendation contained in the report be adopted. THE MOTION WAS PUT AND CARRIED.

482 RESOLUTION

1. Council approve additional funds of $2,438,862 from the Accelerated Infrastructure Funding.

2. Council accept the tender offer of the Preferred Tenderer for Tender T20-50 for the upgrade of Hezlett Road, North Kellyville from Samantha Riley Drive to Armbruster Ave for the contract sum of $10,024,127.



ITEM-14 INFORMATION AND STATUS REPORTS DOC INFO

A MOTION WAS MOVED BY COUNCILLOR HAY OAM AND SECONDED BY COUNCILLOR RUSSO THAT the Recommendation contained in the report be adopted. THE MOTION WAS PUT AND CARRIED.

483 RESOLUTION

1. The status of legal matters before all Courts as shown in Attachments 1, 2 and 3 be noted (ECM Document Nos.18985864, 18985865 and 18985874).

2. The Status of Outstanding Resolutions as shown in Attachment 4 be noted (ECM Document Nos 17211395, 17211396 and 17211398).

3. The Schedule of Questions and Answers at Council Meetings held on 14 July and 28 July 2020 shown in Attachment 5 be noted (ECM Document Nos.18970543 and 18993135).

4. The status of Development Applications awaiting determination as shown in Attachment

6 be noted (ECM Document No. 19017691)

QUESTIONS WITHOUT NOTICE

484 CYCLING IN THE HILLS SHIRE COUNCIL

Councillor Haselden asked if Council had met with Bike North as requested earlier by the organisation or has a meeting date been set? The Group Manager – Shire Strategy, Transformation and Solutions advised a meeting was set down for this week.

485 POTHOLE ON LEXINGTON DRIVE

Councillor Jethi noted the pothole on Lexington Drive was previously fixed and this week it has returned. Has it been fixed again and why is the same pothole back? The General Manager confirmed the pothole was fixed the first time, and fixed again, and investigations are continuing as to what the cause of the recurrent problem is. The General Manager advised he would get an update and advise.

486 DA TRACKING

Councillor Dr Gangemi referred to Council’s DA tracking system and asked if the capital investment value of each project could be listed going forward. Is this something Council would consider? Other Council websites DA Tracking systems show this and it is a good indication to residents in terms of which are the bigger projects. The General Manager advised if other Councils are doing it we can look to do it as well.



487 MOUNT CARMEL DRIVE

Councillor Dr Gangemi enquired when Mount Carmel Drive in Box Hill would be opening to traffic? The General Manager advised he did not have a date yet, but imagines they are having similar experiences as Council with booking inspections to come and finish it, but when you see the linemarking it is usually a good sign it is not far away.

488 TERRY ROAD, BOX HILL

Councillor Dr Gangemi asked if Council would look at smoothing out two (2) dips/jumps that are present along Terry Road, Box Hill. The dips/jumps are located at the transition points between the recently completed works and older sections of Terry Road between Hedgewood Drive and Nix Street. The General Manager advised he would ask the engineers to investigate the matter.

489 TERRY ROAD AND EDWARDS ROAD – STOP SIGNS

Councillor Dr Gangemi noted at the last meeting a motion was moved regarding stop signs being installed at Terry Road and Edwards Road, Box Hill. When will these signs be installed? The General Manager advised he would take the matter on notice.

490 WARWICK PARADE, CASTLE HILL

Councillor De Masi asked if Council had received any complaints or concerns since traffic changes were made to Warwick Parade, Castle Hill. The General Manager advised he was not personally aware of any.

491 UPDATE ON SES HEADQUARTERS

Councillor Jackson asked if there was any update on the new headquarters for the SES. The General Manager advised there were four (4) proposals with Council. The engineers, staff and Landcom are going through those sites and should be in a position to update Councillors next month.

492 ARTHUR STREET TRAFFIC LIGHTS

Councillor Jackson noted the Arthur Street traffic lights have been turned and asked if Council had received any complaints, concerns or correspondence around these lights? The Mayor advised only happy residents have contacted her to say thank you for delivering the new lights.



The Minutes of the above Meeting were confirmed at the Meeting of the Council held on 8 September 2020.

MAYOR GENERAL MANAGER


PAGE 16

ITEM-2 ELECTION OF DEPUTY MAYOR DOC INFO

THEME: Proactive Leadership

OUTCOME: 3 Sound governance that values and engages our customers and is based on transparency and accountability.

STRATEGY: 3.3 Ensure Council is accountable to the community and meets legislative requirements and support Council’s elected representatives for their role in the community.

MEETING DATE: 8 SEPTEMBER 2020 COUNCIL MEETING

GROUP: FINANCE AND ORGANISATIONAL PERFORMANCE

AUTHOR: MANAGER GOVERNANCE AND PUBLIC OFFICER MICHAEL SPENCE

RESPONSIBLE OFFICER: GROUP MANAGER – FINANCE AND ORGANISATIONAL PERFORMANCE CHANDI SABA

REPORT Section 231 of the Local Government Act 1993 provides that Council may elect one of its members to act as Deputy Mayor either for the Mayoral term or for a shorter term. The Deputy Mayor may exercise any function of the Mayor at the request of the Mayor or if the Mayor is prevented by illness, absence or otherwise from exercising the function or if there is a casual vacancy in the office of Mayor. Furthermore, the councillors may elect a person from among their number to act as Deputy Mayor if the Deputy Mayor is prevented by illness, absence or otherwise from exercising a function under this section, or if no Deputy Mayor has been elected. The method of election is set out in the Local Government (General) Regulation, 2005 – Schedule 7. Nominations for the office of Deputy Mayor are required to be in writing and signed by two or more Councillors, one of whom may be the nominee. The nomination is not valid unless the nominee has indicated consent to the nomination in writing. The nomination is to be delivered or sent to the Returning Officer who is the General Manager. It may be handed to the Returning Officer at the meeting. Nomination Forms have been sent to Councillors under separate cover and will also be available at the meeting. The Returning Officer is to announce the names of the nominees at the Council Meeting at which the election is to be held.


PAGE 17

If only one Councillor is nominated, that Councillor is elected. If more than one Councillor is nominated, the Council is to resolve whether the election is to proceed by preferential ballot, by ordinary ballot or by open voting. The preferential and ordinary ballots are defined to be secret ballots and open voting by show of hands. IMPACTS Financial This matter has no direct financial impact upon Council's adopted budget or forward estimates. Strategic Plan - Hills Future The election of the Deputy Mayor contributes to the proactive leadership and governance of the Hills Shire. RECOMMENDATION (Each Recommendation to be moved separately) 1. In accordance with Section 231(2), Council determine that a Deputy Mayor be elected for

the period up until the end of this Council term in 2021.

2. Council determine the method of election to apply for the election of the Deputy Mayor.

3. Council elect one of its members as Deputy Mayor for the period up until the end of this Council term in 2021.

ATTACHMENTS 1. Nomination forms (distributed under separate cover).


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ITEM-3 PLANNING PROPOSAL - BULL AND BUSH HOTEL -

VOLUNTARY PLANNING AGREEMENT (19/2016/PLP)

THEME: Shaping Growth

OUTCOME: 5 Well planned and liveable neighbourhoods that meets growth targets and maintains amenity.

STRATEGY: 5.1 The Shire’s natural and built environment is well managed through strategic land use and urban planning that reflects our values and aspirations.

MEETING DATE: 8 SEPTEMBER 2020 COUNCIL MEETING

GROUP: SHIRE STRATEGY, TRANSFORMATION AND SOLUTIONS

AUTHOR: SENIOR TOWN PLANNER KAYLA ATKINS

RESPONSIBLE OFFICER: MANAGER – FORWARD PLANNING NICHOLAS CARLTON

EXECUTIVE SUMMARY The Sydney Central City Planning Panel (‘SCCPP’) has been appointed as the Planning Proposal Authority, responsible for determining the planning proposal for the Bull and Bush Hotel site at 360-378 Windsor Road, Baulkham Hills. The Panel has required that the Proponent engage with Council with respect to the provision of community facilities, in order to ensure that a mechanism is in place to secure adequate community infrastructure contributions, should the Panel determine to proceed to finalisation of the planning proposal. In response to the Panel’s requirements, the Proponent has submitted an offer to Council to enter into a VPA. The draft VPA offer would require the Proponent to construct, fit-out and dedicate a public library and community centre on the site, with a combined area of 2,500m2, at no cost to Council. The offer also includes the provision of 100 basement car parking spaces and a publicly accessible through site link between Windsor Road and Conie Avenue Reserve. Notwithstanding Council’s previous view and decision on the merits of the planning proposal outcome, the draft VPA offer is considered to represent a fair and reasonable development contribution in association with the proposed development, should the Panel finalise the planning proposal. This report recommends that Council accept, in principle, the Proponent’s VPA offer and progress the matter to the next stage of the process, being detailed legal review and community consultation. It is recommended that as part of the legal review process, a number of amendments be made to the draft VPA, as discussed further within Section 2 of this report. PROPONENT Dyldam Developments Pty Ltd


PAGE 19

OWNERS BNB 88 Pty Ltd POLITICAL DONATIONS Yes BACKGROUND On 24 February 2016, Council received a planning proposal for the Bull and Bush Hotel site at 360-378 Windsor Road, Baulkham Hills. The proposal sought to amend LEP 2019 to facilitate an 8-15 storey mixed use retail/commercial and residential development on the site comprising: 6,042m² of commercial and retail floor space (including a hotel/pub); 2,502m² of community floor space (including library and community centre); and 20,582m² of residential floor space (approximately 200 units).

Figure 1

Site Context

Figure 2

Development Concept – Built Form Massing


PAGE 20

On 8 November 2016, Council resolved to forward the planning proposal to the Department of Planning, Industry and Environment for Gateway Determination. A Gateway Determination was issued for the site on 12 May 2017. However, prior to public exhibition, at its meeting of 12 December 2017 Council considered a report on a previous draft VPA offer associated with the proposal and the conditions imposed within the Department’s Gateway Determination and resolved as follows:

1. Council not proceed with the Planning Proposal (19/2016/PLP) which seeks to amend the land zoning, height of buildings and floor space ratio for the Bull and Bush Hotel site at 360-378 Windsor Road, Baulkham Hills (Lots 1 and 2 DP 783941).

2. The draft Voluntary Planning Agreement not proceed to public exhibition. Following this decision, the Proponent wrote to the Department requesting that an alternate Planning Proposal Authority be appointed for the proposal. This request was granted on 12 June 2018 and the Sydney Central City Planning Panel (‘SCCPP’) was appointed as the Planning Proposal Authority. The proposal was subsequently publicly exhibited by the SCCPP from 5 December 2018 to 1 February 2019 (without a VPA). The outcomes of the exhibition were considered by the SCCPP on 20 May 2020. Consistent with Council’s resolved position, officers submitted that the proposal should not proceed. Officers also argued strongly that should the Panel be of a mind to allow the proposal to proceed that any decision should be deferred until such time as matters of local infrastructure could be further considered and dealt with. Ultimately the Panel unanimously determined to defer a decision on the finalisation of the proposal. Reasons for the deferral related to obtaining further advice from the Department on potential clauses to guide development outcomes on the site, the preparation of a site specific Development Control Plan and providing an opportunity for the Proponent to re-engage with Council with respect to its offer of community facilities. The Panel’s decision is provided as Attachment 1. Council is no longer the planning authority responsible for determining the final planning outcome and controls for this site, with the decision on whether to finalise the proposal to be made by the Panel. Notwithstanding Council’s previous view and decision on the merits of the proposed outcome, the Panel’s deferral requires for further engagement between Council and the Proponent with respect to securing adequate community infrastructure contributions, should the Panel determine to proceed to finalisation of the planning proposal. REPORT This report provides an overview and assessment of the revised VPA offer received by Council in July 2020, in association with the planning proposal at the Bull and Bush Hotel, 360-378 Windsor Road, Baulkham Hills (Lots 1 and 2 in DP 783941) (19/2016/PLP). Council is not the planning authority responsible for determining the planning proposal. However, the VPA offer has been submitted to Council as a mechanism of establishing a fair and reasonable contribution towards future local infrastructure within the Baulkham Hills Town Centre, should the Sydney Central City Planning Proposal determine that the planning proposal will proceed to finalisation. 1. VOLUNTARY PLANNING AGREEMENT OFFER Following the SCCPP’s deferral of a decision on the finalisation of the planning proposal, the Proponent has submitted an offer to Council to enter into a VPA with Windsor Star Pty Ltd. The offer includes the construction, fit-out and dedication of a public library and community


PAGE 21

centre on the site, at no cost to Council. The draft VPA offer is provided as Attachment 2 to this report. The proposed concept includes approximately 2,500m² of community floor space, capable of accommodating a new library and community centre. The Proponent has prepared preliminary concepts, shown in Figures 3, 4 and 5 below. The proposal also includes 100 basement car parking spaces and a publicly accessible through site link between Windsor Road and Conie Avenue Reserve (Figure 6 below). In recognition of the contributions offered, the VPA offer proposes to exempt future development on the site from the payment of Section 7.12 developer contributions. It is noted that the concepts provided in Figures 3 and 4 have been prepared by the Proponent. Should Council resolve to accept, in principle, the draft VPA offer, the final layout, fit-out and specifications would be the subject of further negotiations with the Proponent, prior to public exhibition.

Figure 3

Ground Floor Concept Layout – Public Library and Community Centre


PAGE 22

Figure 4

First Floor Concept Layout – Public Library and Community Space

Figure 5

External Concept view from Conie Avenue Reserve (left) and from Windsor Road (right)


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Figure 6

Proposed location of publicly accessible through site link (blue) Existing community floor space within Baulkham Hills Town Centre comprises a 556m² library (located on Crown land) and a 1,255m² community centre (located on Council owned land), as shown in Figures 7 and 8 below. These facilities are currently in separate locations, with limited scope for upgrades or expansion in the future. The VPA offer would deliver approximately 2,500m² of new library and community floor space and provide Council with the opportunity to consider consolidating existing facilities within Baulkham Hills Town Centre at one single location and re-purposing the existing facilities and/or sites.

Figure 7

Baulkham Hills Library


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Figure 8

Baulkham Hills Community Centre 2. ASSESSMENT OF VPA OFFER The VPA offer has a combined public benefit value of approximately $17.8 million, taking into account the estimated cost of construction and fitout and the value of the stratum space which would be transferred to Council. Having regard to the proposed yield (200 units) and level of uplift sought through the planning proposal, the overall value of the contribution offered is considered to be fair and reasonable. A preliminary review of the VPA offer has been undertaken and the following key issues have been identified for further negotiation with the Proponent: 1. Clarification of Timing of Handover: Should Council resolve to accept, in principle, the

VPA offer, it is recommended that as part of the legal review process (prior to exhibition), the draft VPA be amended to more clearly link the required construction, fit-out and dedication of the facility to the achievement of residential yield within the development (for example, prior to the issue of an Occupation Certificate for a residential dwelling within the building containing the community facility).

2. Layout: Further consideration is required with respect to the proposed layout and design

of the facility. While the offer will comprise a total combined area of 2,500m2 of community floor space, further negotiations may be required with respect to the specific areas of each component (library, community space, meeting rooms) and the layout of the facility over the proposed 2 storeys (for example, locating the library wholly within the ground floor of the development with community space and meeting rooms above in order to reduce staffing and running costs).

3. Fit-out Specifications and Cost: Further negotiation is required to include more

detailed specifications for the fit-out of the community space and identify key inclusions which must be provided by the developer. The VPA should also be amended to remove any “maximum cap” on the value of the fit-out and rather, ensure that the facility is delivered in accordance with the specifications, irrespective of the cost.

Should Council resolve to accept the VPA offer, in principle, the next steps would be for the draft VPA to be subject to legal review and public exhibition. It is recommended that should Council resolve for the VPA to proceed to this next step, that the above changes be made to the draft agreement through the legal review process, prior to the commencement of public exhibition.


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Following the legal review and public exhibition process, a further report would be provided to Council. At this point, Council would be in a position to consider the final draft VPA and determine whether or not to enter into the agreement. IMPACTS Financial The VPA offer would result in the construction, fit-out and dedication of a new public library and community facility at no cost to Council. As such, it represents a significant land and capital contribution. However, in considering this VPA offer, Council should also have regard to ongoing upkeep costs associated with the proposed new asset. Library Facility

The current annual upkeep costs for the existing Baulkham Hills Library are estimated at approximately $1.3 million for this 550m2 facility. The Proponent has offered to deliver the new library space across two (2) storeys. In accordance with the Proponent’s suggested distribution of library and community facility, the annual upkeep costs for the proposed new library are estimated at approximately $2.7 million (based on current operations at Vinegar Hill Memorial Library). As discussed earlier within this report, maintenance costs could be substantially reduced through reducing the area identified for library space and/or locating this on one single level of the development only. Changes of this nature could ultimately result in a running cost that is equivalent to or less than the existing Baulkham Hills library. Should the offer be accepted, Council would have further opportunity to agree upon detailed design, layout and specifications for the facility as part of the legal review process and prior to public exhibition. If the library floor space were reduced and limited to one floor only, with community space and meetings rooms above, there would remain opportunity for Council to redesign or expand the library facilities in the future in response to changing community needs, within the overall 2,500m2 of community floor space. Community Facility

The existing Baulkham Hills Community Centre is approximately 1,255m² in size and the annual upkeep costs are estimated at approximately $79,000 ($63 per square metre). As detailed earlier within this report, there would be scope for further discussions with the Proponent with respect to the detailed design specifications and layout which may provide the opportunity to reduce the potential cost of ongoing operation and upkeep. in order to meet the growing needs of the Baulkham Hills community. Strategic Plan - Hills Future The draft VPA would contribute to the delivery of community infrastructure to service the existing community of Baulkham Hills and provide additional capacity to support anticipated future growth in the locality.


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RECOMMENDATION 1. The draft Voluntary Planning Agreement (Attachment 2) be subject to legal review.

2. As part of the legal review of the draft Voluntary Planning Agreement, and prior to

commencement of public exhibition, the following amendments be incorporated:

a) Inclusion of provisions which require the construction, fit-out and dedication of the community floor space to occur prior to the issue of an occupation certificate for a residential dwelling within the building containing the community facility;

b) Changes to the proposed design and layout of the facility and the specific area of

each component, having regard to the future operation and maintenance of the facility; and

c) Inclusion of detailed specifications for the future fit-out of the facility to be completed

by the developer.

3. Following legal review, the draft Voluntary Planning Agreement, incorporating any amendments arising from the legal review process, be publicly exhibited for a period of at least 28 days, in accordance with the requirements of the Environmental Planning and Assessment Act 1979.

ATTACHMENTS 1. Sydney Central City Planning Panel Decision, 20 May 2020 (2 pages) 2. Draft Voluntary Planning Agreement – 360-378 Windsor Road, Baulkham Hills (36

pages)


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DRAFT PLANNING AGREEMENT Windsor Star Pty Ltd 03 August 2020 www.thehills.nsw.gov.au

ATTACHMENT 2

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Page 2

Summary Sheet Council Name The Hills Shire Council

Address 3 Columbia Court

Baulkham Hills NSW 2153

Telephone (02) 9843 0555 Facsimile (02) 9843 0409

Email [email protected] Representative Mr Michael Edgar –General Manager

Developer Name Windsor Star Pty Ltd Address Level 1

74 Macquarie Street

Parramatta NSW 2150 Telephone (02) 9893 7607

Facsimile (02) 9687 2376

Email [email protected] Representative Remon Fayad – Development Director

Land 360 – 378 Windsor Road, Baulkham Hills in the State of New South Wales (Lots 1 and 2 DP783941)

Works See Schedule 2

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Page 3

CONTENTS

1 Defined meanings 5

2 Planning agreement under the Act 5

3 Application of this document 5

4 No restriction on Council’s Powers 5

5 Operation of this document 6

6 Dealings 6

7 Development Contributions 7

8 Community Centre and Library 8

9 Ownership of Works 12

10 Access to the Land and location of Works 12

11 Variation of Works 13

12 Hand-Over of Works 13

13 Failure to Carry out and Hand-Over Works 14

14 Works-As-Executed-Plan 15

15 Defects Liability 15

16 Cost of Works carried out by the Council 16

17 Insurance 16

18 Application of s94, s94A and s94EF of the EPAA 16

19 Termination 17

20 Consequences 17

21 Private Certifiers 17

22 Dispute resolution 17

23 Notices 19

24 Breach Notice and Rectification 19

25 Registration of document on Title 19

26 General 21

27 Definitions and interpretation 22

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Schedules 1. Schedule 1 – Designated Land 2. Schedule 2 –Works 3. Schedule 3 – Designated Land Plan 4. Schedule 4 - Concept Plan

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Planning Agreement

Dated

Parties

The Hills Shire Council (ABN 25 034 494 656) of 3 Columbia Court, Baulkham Hills in the State of New South Wales (Council)

Windsor Star Pty Ltd (ACN 603 417 821) of Level 1, 74 Macquarie Street, Parramatta in the State of New South Wales (Developer)

Background

A. The Developer has lodged the Planning Proposal with Council seeking the LEP Amendment in respect of the Land.

B. The Department has issued the Gateway Determination for the Planning Proposal.

C. The Developer proposes to apply for Development Consent to carry out the Development if the LEP Amendment is made.

D. The Developer offers to make the Development Contributions in connection with the Development as set out in this Document.

Operative provisions

1 Defined meanings

Words used in this document and the rules of interpretation that apply are set out and explained in clause 27of this document.

2 Planning agreement under the Act

This document is a planning agreement within the meaning of subdivision 2, Division 6, Part 4 of the Act.

3 Application of this document

This document applies to both the Land and to the Development.

4 No restriction on Council’s Powers

This document or anything done under this document:

(a) is not to be taken as approval or consent by Council as a regulatory authority; and

(b) is not intended in any way to inhibit, deter, fetter or prejudice Council in the proper exercise of its functions, duties or powers,

pursuant to any applicable legislation including the Act, the Roads Act 1993 (NSW) and the Local Government Act 1993 (NSW).

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5 Operation of this document

(a) Clauses 1,2,3,4,5,19, 20, 22, 23, 24, 26 and 27 of this document will operate from the signing of this document.

(b) Clause 25 of this document only operates from the making of the LEP Amendment.

(c) Clauses 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 21 of this document only operate from the grant of Development Consent.

6 Dealings

6.1 Assignment and dealings

(a) The Developer must not during the term of this document sell, transfer, assign, or novate its right, title or interest in the Designated Land without first obtaining Council’s consent in writing(which must not be unreasonably withheld) unless, prior to any such sale, transfer, assignment or novation, the Developer procures that the transferee, assignee or novatee executes and delivers to Council a deed in favour of Council whereby:

(i) the transferee, assignee or novatee becomes contractually bound with Council to perform all of the Developer’s obligations (including obligations which may have arisen before the transfer, assignment or novation takes effect) and have the benefit of all the Developer’s rights under this document; and

(ii) the Developer is released from its obligations under this document.

6.2 Caveat

(a) The parties agree that:

(i) the obligations under this document create a caveatable interest in part of the Land in favour of the Council in relation to the Community Centre and Library Lands and the Right of Way; and

(ii) despite clause 6.2(a)(i), the Council is prohibited from recording a caveat on the title(s) to the Land, except in the following circumstances:

(A) following registration of the strata subdivision of the Community Centre and Library Lands as separate lot(s); or

(B) in the Event of Default under this document.

(b) In the event Council records a caveat on the title to the Land as permitted by clause 6.2(a) of this document:

(i) subject to Council complying with clauses 6.2(b)(ii) and 6.2(b)(iii) of this document, the Developer must not object to, seek to withdraw or issue a lapsing notice for a caveat lodged by Council in respect of the Community Centre and Library and the Right of Way;

(ii) Council must not unreasonably withhold or delay its consent to the registration of any dealing by or on behalf of the Developer that would not have a material adverse effect on Council’s interest in the Community Centre and Library and the Right of Way; and

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(iii) Council will give to the Developer a withdrawal of any caveat recorded on title by the Council within 7 days of:

(A) the Event of Default referred to in clause 6.2(a)(ii)(B) being rectified or waived; or

(B) this document being validly terminated by the Developer.

7 Development Contributions

7.1 Right of Way

(a) The Developer must make available to the public the Through Site Link by registering an easement (or such other instrument agreed to by Council acting reasonably) (Right of Way) in a form satisfactory to Council on the title of those parts of the Designated Land identified as the Through Site Link prior to the date which is 21 days after the issue of the last occupation certificate for the Development (being an occupation certificate which results in all residential buildings within the Development being subject to an occupation certificate).

(b) The Parties acknowledge that the Right of Way for the Through Site Link has been offered by the Developer prior to obtaining any Development Consent for the detailed design of the Development (including any Hotel Beer Garden).

(c) Upon Council receiving any written notification from the Developer that the Developer wishes to re-negotiate the Right of Way, the parties must use reasonable endeavours, and act in good faith, to agree adjustments to the Right of Way which are reasonably necessary to accommodate the detailed design of the Development (including any Hotel Beer Garden) authorised by applicable Development Consent.

(d) The terms of the Right of Way for the purposes of clause 7.1(a) is as follows:

‘(i) Subject to (ii) below, full and free right for any person to go, pass and repass the site of the right of way at all times and for all lawful purposes:

(i) on foot;

(ii) with wheelchairs or other disabled access aids; and

(iii) without vehicles, bicycles, skateboards, scooters, rollerblades or similar items or animals (but exempting guide dogs and hearing dogs for the visually or hearing impaired).

(ii) Despite (i) above, the owner of the lot burdened may:

(A) at all or any times install or place in the site of the right of way appropriate street furniture or any items related with retail uses of the lot burdened including tables, seating, umbrellas, signage, lighting, displays, wind breaks and heaters; and

(B) acting reasonably (and having proper regard to the nature of the use of, or activity carried out on the lot burdened) remove (or refuse entry to) any person if that person:

is not adequately clothed;

is drunk or under the influence of drugs;

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loiters or causes excessive noise;

behaves in a manner reasonably likely to cause harm, alarm, offence, embarrassment or inconvenience to persons on the lot burdened;

is creating any inconvenience, disturbance or damage to the owner of the lot burdened, the lot burdened and any occupier of the lot burdened;

soils or leaves litter on the site of the right of way;

causes or is acting in a manner that is reasonably likely to cause damage to the lot burdened and any improvements on it; or

does not comply with any rules made by the owner of the lot benefited in relation to the use and enjoyment of the site of the right of way.’

8 Community Centre and Library

8.1 Community Centre and Library Works

(a) The Developer must carry out and complete the Works for the Community Centre and Library as specified in Schedule 2.

(b) The Developer’s obligation under clause 8.1 exists irrespective of whether the Developer:

(i) carries out the Works itself, or

(ii) enters into an agreement with another person under which the other person carries out the Works on the Developer’s behalf.

(c) The Developer must ensure that any, and all, items of the Work have the requisite statutory development consent, approvals and/ or certificates to undertake the Works.

(d) The Developer is to carry out and complete all Works in a good and workmanlike manner having regard to the intended purpose of the Works and otherwise to the reasonable satisfaction of Council, in accordance with:

(i) any applicable Development Consent, and

(ii) all applicable laws, including those relating to work health and safety, and

(iii) this document to the extent that it is not inconsistent with the Development Consent or an applicable law.

(e) In the event of an inconsistency between this document and the Development Consent or any applicable law, the Development Consent or the law prevails to the extent of the inconsistency.

8.2 Development Application Stage – Design and Specification

(a) Prior to the lodgement by, or on behalf of, the Developer of any development application seeking Development Consent for the Community Centre and Library, the Developer

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must prepare and submit to Council the concept design and base specification for the Community Centre and Library.

(b) The concept design and base specification for the purposes of clause 8.2 (a) must be prepared by the Developer having specific regard to:

(i) the Concept Plan for the Community Centre and Library at Schedule 4 to this document;

(ii) the description of the Community Centre and Library contained in Schedule 2 to this document; and

(iii) the Community Centre and Library ‘Cold Shell’ Cost Estimate;

(iv) the following design requirements:

(A) Location

highly visible with a transparent façade;

provision of security measures – 24 hour security;

wheelchair accessible; and

lift access to basement car parking and first floor / mezzanine.

(B) Functionality

flexible interior with an open plan to allow for multi uses;

soundproofing/acoustic measures (as required); and

loading facilities.

(C) Staff Facilities

work room / staff room / returns room; and

amenities (toilets e.t.c.).

(D) Customer Facilities

meeting rooms;

ground floor café;


(E) Library Operations

after-hours access for pickup and returns;

defined meeting spaces for after hours;

access for library deliveries / supplier deliveries;

outdoor seating area / storey telling space for children; and

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sink and wet area for childrens activities.

(c) If, within twenty (20) Business Days, or such other time period agreed in writing by the parties acting reasonably to enable Council to undertake its decision making processes, of the date of submission referred to in clause 8.2(a):

(i) Council notifies the Developer in writing of its approval of the concept design and base specification, the Developer may lodge the development application seeking Development Consent for the Community Centre and Library;

(ii) Council fails to notify the Developer in writing that it approves or does not approve of the concept design and base specification, Council is taken to have approved the concept design and base specification of the Community Centre and Library and the Developer may lodge the development application seeking Development Consent for the Community Centre and Library; or

(iii) Council notifies the Developer in writing that it does not approve of the concept design and base specification, the Developer may:

(A) elect to amend the concept design and base specification and submit to Council the amended concept design and base specification in which case the approval process set out in this clause 8.2 applies to that amendment; or

(B) if the Developer does not agree with the modifications requested by Council, refer the matter for dispute resolution under clause 21.

(d) For the purposes of clause 8.2(c)(iii), except with the agreement of the Developer, Council cannot require the Developer to:

(i) comply with a design that is inconsistent with the matters set out in clauses 8.2(b)(i), (ii) and (iii) of this document; or

(ii) make modifications to the concept design and base specification of the Community Centre and Library proposed by the Developer that results in a material change to the nature and scope of that item of Work as set out in this document.

8.3 Construction Certificate Stage – Design and Specification

(a) Prior to the lodgement by, or on behalf of, the Developer of an application for the first construction certificate for the Community Centre and Library, the Developer must prepare and submit to Council the detailed design and specification for the Community Centre and Library (including the proposed scope for the ‘warm shell’ fit out works), together with a report prepared by a suitably qualified Quantity Surveyor which estimates the costs associated with the proposed ‘warm shell’ fit out works (Community Centre and Library ‘Warm Shell’ Fit-Out Cost Estimate).

(b) For the purposes of clause 8.3(a) of this document, the detailed design and specification for the Community Centre and Library must be prepared by the Developer having specific regard to:

(i) the relevant Development Consent that applies to the Community Centre and Library;

(ii) the description of the Community Centre and Library contained in this document;

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(iii) the Community Centre and Library ‘Cold Shell’ Cost Estimate;

(iv) the Community Centre and Library ‘Warm Shell’ Fit-Out Cost Estimate; and

(v) the following design requirements:

(A) Location

highly visible with a transparent façade;

provision of security measures – 24 hour security;

wheelchair accessible; and

lift access to basement car parking and first floor / mezzanine.

(B) Functionality

flexible interior with an open plan to allow for multi uses;

soundproofing/acoustic measures (as required); and

loading facilities.

(C) Staff Facilities

work room / staff room / returns room; and


(D) Customer Facilities

meeting rooms;

ground floor café;


(E) Library Operations

after-hours access for pickup and returns;

defined meeting spaces for after hours;

access for library deliveries / supplier deliveries;

outdoor seating area / storey telling space for children; and

sink and wet area for children’s activities.

8.4 Dedication of Community Centre and Library Land

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(a) The Developer must do (or procure to be done) all things reasonably necessary to dedicate the Designated Land to Council free of any trusts, estates, interests, covenants and Encumbrances by the date which is no later than 3 months after the Hand Over Date at no cost to Council.

(b) The Developer is responsible for all costs associated with the dedication of the Designated Land in accordance with clause 8.3, including any reasonable costs incurred by Council in relation to that dedication.

(c) For the purpose of this document, Designated Land is dedicated to Council:

(i) if the relevant land is dedicated in a plan registered at the NSW Land Registry Services, when that plan is so registered; or

(iii) otherwise when the Developer delivers to Council:

(A) a transfer of the relevant land in registrable form;

(B) the original Certificate of Title for the Designated Land; and

(C) any document in registrable form which, when registered, will remove any Encumbrances registered on the title to the Designated Land.

8.5 The Developer is to do all things reasonably necessary to enable registration of the instrument of transfer to occur.

9 Ownership of Works

(a) Ownership, possession and control of, and risk in, the Works is accepted by Council when:

(i) the Works are Handed-Over to Council; and

(ii) the Community Centre and Library is transferred to Council.

10 Access to the Land and location of Works

(a) The Developer must permit the Council, its officers, employees, agents and contractors to enter the Land at any time, upon giving reasonable prior notice, in order to undertake reasonable inspection, examination or testing of any of the Works.

(b) The Developer must ensure in relation to the carrying out of the Works that:

(i) all necessary measures are taken to protect people, property and the Environment;

(ii) unnecessary interference with the passage of people and vehicles is avoided;

(iii) nuisances and unreasonable noise and disturbances are prevented; and

(iv) all applicable laws and regulations with respect to water, air, noise and land pollution as defined under the Protection of the Environment Operations Act 1997 (NSW) are complied with.

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11 Variation of Works

(a) The Works are not to be varied by the Developer unless:

(i) the Parties agree in writing to the variation; and

(ii) any consent or approval required under the Act or any other law to the variation is obtained.

(b) For the purposes of clause 11(a) a variation may relate to any matter in relation to the Works that is dealt with by this document.

(c) If Council requests a variation to the Works after Council has given its written approval under clause Error! Reference source not found..2, then the Council shall be liable to pay to the Developer an amount equal to all of the Developer’s reasonable costs of and incidental to agreeing to and approving the variation, and the increase in the costs of completing the Works which results from the variation requested by the Council.

(d) Council shall pay the amount referred to in clause 15(c) to the Developer after the Works are complete, and within 28 days of receipt of:

(i) a tax invoice for the amount claimed by the Developer; and

(ii) documentation which demonstrates to Council’s reasonable satisfaction the increase in costs as a result of the variation requested by the Council.

12 Hand-Over of Works

(a) The Developer must give the Council not less than 20 days written notice of:

(i) the date on which it proposes to Hand-Over any Works to the Council; and

(ii) the items of Work the subject of the notice.

(Hand-Over Notice)

(b) Prior to the date specified in the Hand-Over Notice, Council must provide notice in writing to the Developer (Completion Notice) that the Works set out in the Completion Notice:

(i) have been completed, in which case the Works are taken to be Handed-Over to Council on the date specified in the Hand-Over Notice; or

(ii) have not been completed, in which case the Completion Notice must detail the Works which have not been completed, and the Work which the Council requires the Developer to carry out by a specified date (which must be a reasonable time and not less than fourteen (14) days) in order to complete the Works in accordance with clause 8.1 before it is Handed-Over to the Council.

(c) If Council does not provide the Developer with a Completion Notice in accordance with clause 12(b), the Works set out in the Hand-Over Notice will be deemed to have been Handed-Over to Council from the date specified in the Hand-Over Notice.

(d) Where Council serves a Completion Notice on the Developer which requires rectification works to be carried out, the Developer must:

(i) rectify the Works in accordance with the Completion Notice; or

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(ii) serve notice on Council that it disputes the matters set out in that Completion Notice.

(e) Where the Developer:

(i) serves notice on Council in accordance with clause 12(d)(ii), the dispute resolution provisions of this document apply; or

(ii) rectifies the Works in accordance with clause 12(d)(i), it must serve upon the Council a new Hand-Over Notice for the Works it has rectified and the process in respect of the Hand-Over of the Works in this clause 12 apply to the Works set out in the new Hand-Over Notice.

(f) Before the Works are Handed-Over to the Council, the Developer must remove from the relevant parts of the Land:

(i) any rubbish or surplus material; and

(ii) any temporary works; and

(iii) any construction plant and equipment, relating to the carrying out of the Works as the case requires.

13 Failure to Carry out and Hand-Over Works

(a) The parties agree that the Hand-Over Date may be extended due to:

(i) any Force Majeure Event;

(ii) any delays on the part of any government authority (including the Council) in granting any approval, consent, licence or permit necessary for the Works to be completed, or any delay arising from any litigation or dispute in relation to any such approval, consent, licence or permit; or

(iii) any other basis as agreed by the parties acting reasonably.

(b) If the Council considers that the Developer is in breach of any obligation under this document relating to the carrying out of the Works, the Council may give the Developer a notice requiring:

(i) the breach to be rectified to the Council’s reasonable satisfaction, or

(ii) the carrying out of the Works to immediately cease, except in relation to the rectification of the breach, and the breach to be rectified to the Council’s reasonable satisfaction.

(c) A notice given under clause 13(b) is to allow the Developer a reasonable period (and in any case not less than forty (40) days) to rectify the breach.

(d) If the Developer fails to rectify the breach the subject of a notice given under clause 13(b), the Council may:

(i) carry out and complete or make safe the Works; and

(ii) the Developer must pay all reasonable costs incurred by the Council in remedying any such breach.

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(e) Despite clauses13(a), 13(b)and 13(c) of this document, if urgent action is necessary in relation to any Works in order to protect property or people and the Developer fails to take the action then, in addition to any other remedies of the Council, the Council may:

(i) take the necessary action without the need to provide notice (although Council must use all reasonable endeavours to provide a reasonable amount of notice in the circumstances); and

(ii) the Developer must pay all reasonable costs incurred by the Council in carrying out any such action.

13.2 For the purposes of clause 13(d)(i) and clause13(e)(i) the Developer must allow the Council, its servants, agents and contractors to enter the Land for the purpose of completing the Works.

14 Works-As-Executed-Plan

(a) No later than 60 days after an item of Work has been Handed-Over to Council, the Developer is to submit to the Council a full Works-As-Executed-Plan in respect of the completed Works.

(b) The Developer shall provide with the Works-as-Executed Plan(s) all appropriate certificates to verify that the Works have been carried out in accordance with relevant standards.

15 Defects Liability

(a) During the Defects Liability Period the Council may give to the Developer a notice in relation to any defect or fault in the Works due to faulty materials or workmanship but excluding normal maintenance, normal and fair wear and tear, minor shrinkage and minor settlement cracks.

(Defects Notice)

(b) A Defects Notice must specify the following information:

(i) the Works requiring rectification, and the nature and extent of the defect;

(ii) the action required to be undertaken by the Developer to rectify those defects; and

(iii) the date on which those Works are to be rectified (which must be a reasonable time and not less than forty (40) days or such other time period agreed by the Parties acting reasonably).

(c) Where Council serves a Defects Notice on the Developer, the Developer must comply with the Defects Notice at its own cost according to the terms of the Notice.

(d) When the Developer considers that any Defects Notice is satisfied, the Developer may give to the Council a Rectification Certificate relating to the Works the subject of the relevant Rectification Notice.

(e) A Rectification Certificate discharges the Developer from any further obligation to comply with the relevant Defects Notice.

(f) If the Developer does not comply with a Defects Notice, the Council may do such things as are necessary to rectify the defect and may recover, as a debt due in a court of

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competent jurisdiction the reasonable costs incurred by the Council in rectifying the defect subject of the Defects Notice.

16 Cost of Works carried out by the Council

(a) Where, in accordance with this document, the Council incurs a reasonable cost in carrying out, completing or rectifying a defect specified in a Defects Notice, the Council may recover from the Developer in a court of competent jurisdiction such reasonable costs.

(b) The Council’s costs of carrying out, completing or rectifying a defect specified in a Defects Notice in accordance with this document include:

(i) the reasonable costs of the Council’s servants, agents and contractors reasonably incurred for that purpose;

(ii) all reasonable fees and charges necessarily or reasonably incurred by the Council in order to have the Works carried out, completed, made safe or rectified; and

(iii) without limiting the generality of the preceding sub-clause, all reasonable legal costs and expenses reasonably incurred by the Council, by reason of the Developer's failure to comply with this document.

17 Insurance

(a) The Developer is to take out and keep current to the satisfaction of the Council the following insurances in relation to the Works up until the relevant date of Hand-Over to Council:

(i) contract works insurance, noting the Council as an interested party, for the full replacement value of the Works (including the cost of demolition and removal of debris, consultants’ fees and authorities’ fees), to cover the Developer’s liability in respect of damage to or destruction of the Works;

(ii) public liability insurance for at least $10,000,000 for a single occurrence, which covers the Council, the Developer and any subcontractor of the Developer, for liability to any third party; and

(iii) workers compensation insurance as required by law.

(b) If the Developer fails to comply with clause (a), the Council may effect and keep in force such insurances and pay such premiums as may be reasonably necessary for that purpose and the amount so paid shall be a debt due from the Developer to the Council and may be recovered by the Council as it deems appropriate including recovery as a debt due in a court of competent jurisdiction.

(c) The Developer must not to commence to carry out the Works unless it has first provided to the Council satisfactory written evidence of all the insurances specified in clause 17(a).

18 Application of s7.11, s7.12and s7.24 of the EPAA

(a) This document excludes the application of sections 7.11, 7.12 and 7.24 of the Act in relation to any Development Consent for the Development.

(b)

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(c)

19 Termination

19.1 Termination

(a) This document terminates in the following events:

(i) the parties agree in writing to terminate the operation of this document at any time;

(ii) if Development Consent is granted by the Council with respect to the Development, this document terminates with respect to that particular Development Consent:

(A) on the lapse of the Development Consent; or

(B) on the formal surrender of the Development Consent; or

(C) on the final determination by a Court of competent jurisdiction issuing a declaration that the Development Consent is invalid.

20 Consequences

(a) Upon termination of this document:

(i) all future rights and obligations of the parties are discharged; and

(ii) all pre-existing rights and obligations of the parties continue to subsist.

21 Private Certifiers

Where Council is not the certifying authority for any aspect of the proposed Development the Developer must on the appointment of a private certifier provide a copy of this document to the private certifier.

22 Dispute resolution

22.1 Notice of Dispute

(a) If any issue relating to this document is the subject of a dispute between the parties then any party may give the other a written notice setting out the matter in dispute and the reasons for the dispute (the Notice of Dispute).

22.2 Meeting of Representatives

(a) If a dispute subject of a valid Notice of Dispute served pursuant to clause 22.1(a) of this document has not been settled within ten (10) Business Days of the date of that Notice, then either party can require that a representative of each party able to bind that party, meet and undertake genuine and good faith negotiations with a view to resolving the dispute.

(b) If a meeting is required under this clause 22.2 by either party, then each party must ensure that their nominated representative attends that meeting. Each party will use its best endeavours to ensure that a meeting required under this clause takes place within five (5) Business Days of the receipt of a valid written requirement for the meeting.

22.3 Disputes for mediation or expert determination

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(a) If the parties’ representatives have not been able to resolve the dispute, then the parties must within five (5) Business Days either:

(i) refer any disputes in relation to any Draft Valuation Report, design and specification of Work, Hand-Over Notices, Completion Notices, Defects Notices or Hand-Over of Works to expert resolution under clause 22.5; or

(ii) agree to refer disputes in relation to any other matters not specified in clause 22.3(a)(i) to mediation under clause 22.4 or expert resolution under clause 22.5.

22.4 Mediation

(a) If the parties agree in accordance with clause 22.4 to refer the dispute to mediation, the mediation must be conducted by a mediator agreed by the parties and, if the parties cannot agree within five (5) Business Days, then by a mediator appointed by the President of the Law Society of New South Wales for the time being.

(b) If the mediation referred to in clause 22.4(a) has not resulted in settlement of the dispute and has been terminated, the parties may agree to have the matter determined by expert determination under clause 22.5.

22.5 Expert Determination

(a) If the dispute is to be determined by expert determination, this clause 22.5 applies.

(b) The parties must refer the matter subject of the Notice of Dispute as soon as practicable to an expert appointed by the parties for a determination.

(c) For the purposes of appointing the expert pursuant to clause 22.5(b) of this deed, the expert shall be agreed between the parties provided that if the parties do not agree to an expert within ten (10) Business Days of this clause 22.5 applying to the dispute, then either party may request the President of the Law Society of New South Wales for the time being to nominate for appointment by the parties, the expert (who shall be an independent expert with at least ten (10) years’ experience in relation to matters of the same general description as the relevant matter in dispute) and the parties shall appoint that person the expert for the dispute.

(d) The independent expert shall act as an expert and not as an arbitrator and the parties shall be bound by the conclusions of the expert, save in the case of manifest error.

(e) The expert shall determine the procedure for making findings, provided that the expert shall:

(i) allow each of the parties to make oral or written representations in relation to a particular matter on or before fifteen (15) Business Days after appointment of the expert (or such longer period as the expert may allow);

(ii) make findings on the basis of information provided by the parties through the representations referred to in clause 22.5(e)(i) of this document;

(iii) confine findings to the issues in the Notice of Dispute; and

(iv) provide written findings and reasons for those findings on or before ten (10) Business Days after the conclusion of representations by the parties (unless that period is extended by the prior written agreement of both parties in their absolute discretion).

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(f) The costs and expenses of the expert shall be shared equally by the parties and each party shall bear its own costs and expenses.

(g) The parties must enter into a deed with the expert on terms which reflect the requirements of this clause and otherwise in the form of the agreement for expert determination customarily used by the expert except that the agreement must oblige the expert:

(i) not to communicate with one party to the determination without the knowledge of the other; and

(ii) to issue the determination with reasons within ten (10) Business Days after the conclusion of representations by the parties (unless that period is extended by the prior written agreement of both parties in their absolute discretion).

23 Notices

(a) Any notice, consent or other communication to or by a party under this document must be in writing and signed by or on behalf of the sender or, if a corporate party, an authorised officer of the sender address to the person to whom it is to be given.

(b) Any notice may be served by delivery in person or by post or transmission by facsimile to the address or number of the recipient specified in the Summary Sheet or most recently notified by the recipient to the sender.

(c) Any notice is effective for the purposes of this document upon delivery to the recipient or production to the sender of a facsimile transmittal confirmation report before 4.00pm local time on a day in the place in or to which the written notice is delivered or sent or otherwise at 9.00am on the next day following delivery or receipt.

24 Breach Notice and Rectification

(a) If the Developer breaches a material obligation under this document, Council may serve written notice on the Developer specifying the nature and extent of the alleged breach and require rectification of that breach within a reasonable period of time of not less than forty (40) Business Days (Breach Notice).

(b) The Developer commits an Event of Default if it fails to comply with a Breach Notice within the time specified in the Breach Notice, or such other time as agreed between the Parties.

(c) Where the Developer commits an Event of Default Council may enter upon any part of the Land that it requires access to in order to satisfy the obligations of the Developer under the Breach Notice, and the Developer must pay all reasonable costs incurred by the Council in remedying any such breach.

25 Registration of document on Title

25.1 Acknowledgement

The Developer acknowledges that Council intends to register this document under section 93H of the Act on the Land and on registration by the Registrar-General the document will be binding on and enforceable against the owners of the Land from time to time as if each owner for the time being had entered into this document.

25.2 Consents to Registration

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This document must be registered on the title of the Land as soon as practicable after the making of the LEP Amendment. Each Party must promptly execute any document and perform any action necessary to effect the registration of this document on the title of the Land.

25.3 Release from Registration

Council must at the request of the Developer provide the Developer with a release and discharge of this document from any part of the Land with respect to which the Developer has complied with its obligations under this document. The obligations of the Council are satisfied when Council provides the Developer with a signed Request in registrable form for the release of registration of this document.

25.4 Registration Expenses

The Developer must pay Council's reasonable expenses including registration fees, any stamp duty, legal costs and disbursements, for the registration of this document and the subsequent removal of registration.

25.5 Costs

(a) The Developer must pay on demand Council’s reasonable costs and expenses including legal costs and disbursements as agreed or assessed, survey fees and consultant’s charges reasonably incurred in relation to:

(i) the preparation, review, amendment and finalisation of this document, including all attendances and related advice;

(ii) any request by the Developer under the document;

(iii) the preparation, lodgement and withdrawal of any caveat over the Land or pursuant to this document;

(iv) any litigation or dispute resolution procedure involving the Council in respect of this document in which no judgement or order is awarded against Council; and

(v) any breach of a provision of this document by the Developer.

(b) The Developer must pay interest on any money due to Council but not paid on the due date from the date payment was due at the Prescribed Rate.

25.6 GST

(a) In this clause 25.6, terms used that are defined in the GST Law, but not defined in this document, have the same meanings as given to them in the GST Law

(b) If any payment made by one party to any other party under or relating to this document constitutes consideration for a taxable supply(as reduced in accordance with clause 25.7(d) if required), the amount to be paid for the supply will be increased by an additional amount in accordance with the GST Law (Additional Amount) so that the net amount retained by the supplier after payment of that GST is the same as if the supplier was not liable to pay GST in respect of that supply. This provision is subject to any other agreement regarding the payment of GST on specific supplies, and includes payments for supplies relating to the breach or termination of, and indemnities arising from, this document.

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(c) The Additional Amount payable under clause 25.6(b) is payable without set-off or deduction at the same time and in the same manner as the consideration for the taxable supply.

(d) Notwithstanding any other provision in this document, if an amount payable under or in connection with this document (whether by way of reimbursement, indemnity or otherwise) is calculated by reference to an amount incurred by a party, whether by way of cost, expense, outlay, disbursement or otherwise (Amount Incurred), the amount payable must be reduced by the amount of any input tax credit to which that party (or the representative member of the GST group of which that party is a member) is entitled in respect of that Amount Incurred.

26 General

26.1 Governing law and jurisdiction

(a) This document is governed by and construed under the law in the State of New South Wales.

(b) Any legal action in relation to this document against any party or its property may be brought in any court of competent jurisdiction in the State of New South Wales.

(c) Each party by execution of this document irrevocably, generally and unconditionally submits to the non-exclusive jurisdiction of any court specified in this provision in relation to both itself and its property.

26.2 Amendments

Any amendment to this document has no force or effect, unless amended by a written document executed by the parties.

26.3 Pre-contractual negotiation

This document:

(a) expresses and incorporates the entire agreement between the parties in relation to its subject matter, and all the terms of that agreement; and

(b) supersedes and excludes any prior or collateral negotiation, understanding, communication or agreement by or between the parties in relation to that subject matter or any term of that agreement.

26.4 Further assurance

Each party must sign, execute and deliver any documents, agreements, instruments and perform any action reasonably necessary to give full effect to this document and the rights and obligations of the parties under it.

26.5 Waivers

Any failure by any party to exercise any right under this document does not operate as a waiver and the single or partial exer

ORDINARY MEETING OF COUNCIL - The Hills Shire...Local Government Act, 1993 and the Local Government...

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Transcript of ORDINARY MEETING OF COUNCIL - The Hills Shire...Local Government Act, 1993 and the Local Government...